Supernaw v. Muskegon Cnty. Rd. Comm'n

1

DONALD SUPERNAW and LORI SUPERNAW, Plaintiffs-Appellants, v. MUSKEGON COUNTY ROAD COMMISSION and TRI-US SERVICES INC, Defendants-Appellees, and BIT-MAT PRODUCTS OF MICHIGAN, Defendant.

No. 359999

Court of Appeals of Michigan

November 22, 2022

UNPUBLISHED

Muskegon Circuit Court LC No. 20-000658-NI

Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.

PER CURIAM.

Plaintiffs appeal following the trial court's grants of summary disposition, first for defendant Road Commission and then for defendant Tri-Us. We affirm the grant of summary disposition in favor of Tri-Us, but reverse the grant of summary disposition in favor of the Road Commission and remand for further proceedings consistent with this opinion.

For purposes of this appeal, we accept plaintiffs' factual claims that plaintiff Donald Supernaw (hereinafter "plaintiff") was injured when operating his motorcycle on Farr Road in Muskegon County when he lost control of the motorcycle when encountering loose aggregate on the road surface. This was part of a chip sealing process by which an emulsion and stone chips are put down on the road. The road is thereafter swept to remove from the road surface any loose stones that had not adhered to the emulsion. Tri-Us contracted with the Road Commission to perform additional sweeping of the road.

The issue presented on appeal with respect to the Road Commission is whether plaintiffs properly and timely complied with the statutory requirement to provide defendant with a notice of plaintiffs' intent to sue. It is undisputed that plaintiff sent their notice of intent to the Muskegon County Clerk 68 days after the accident. The trial court determined that the notice was tardy and that all the required parties were not served:

The Muskegon County Road Commission, as a governmental agency, enjoys the protections afforded by sovereign immunity. However, the legislature has carved out an exception to this shield for claims based upon a failure to maintain a road in reasonable repair. MCL 691.1402(1). The procedure for processing such a claim against a county road commission is set forth in MCL 224.21. Brugger v Midland County Board of Road Commissioners, 324 Mich.App. 307 920 N.W.2d 388 (2018). One of the requirements of the statute is that plaintiff file a notice of the claim with the county clerk and the chairperson of the defendant within 60 days after his injury. Id.

Plaintiffs moved for reconsideration, which the trial court denied. Subsequently, the Supreme Court issued their opinion in Estate of Brendon Pearce v Eaton Co Rd Comm, 507 Mich. 183; 968 N.W.2d 323 (2021).^[1] Plaintiffs moved a second time for reconsideration in light of Pearce, which the trial court denied on the basis that the court rules do not provide a mechanism to bring a second motion for reconsideration.^[2]

Ultimately the issue before the Supreme Court in Pearce was whether this Court correctly concluded in Streng v Bd of Mackinaw Co Rd Comm'rs, 315 Mich.App. 449; 890 N.W.2d 680 (2016), that the 60-day notice requirement under the County Road Law, MCL 224.1 et seq., prevailed over the 120-day notice requirement of the governmental tort liability act (GTLA), MCL 691.1401 et seq. Pearce, 507 Mich. at 187. The Supreme Court concluded the 120-day notice requirement of the GTLA continues to be the applicable requirement:

The Streng panel should have followed this Court's decision in Brown [v Manistee Co Rd Comm, 452 Mich. 354; 550 N.W.2d 215 (1996)] and applied the GTLA's presuit requirements, not the requirements provided in the County Road Law; it could not decide this question for itself. Brown's holding on that point survived this Court's decision in Rowland [v Washtenaw Co Rd Comm, 477 Mich. 197; 731 N.W.2d 41 (2007)], and it was therefore binding on the Streng panel. Whether Brown correctly decided this question is for this Court to decide. But because it was not raised by the parties here, we save it for another day.

While it is clear that the Supreme Court has left open the possibility of revisiting its decision in Brown and might conclude that the 60-day limit of the County Road Law does control, it is equally clear that the 120-day limit of the GTLA is to be applied until and unless the Supreme Court makes that determination. In the case before us, the trial court understandably applied the County Road Law when the motion for summary disposition was brought and did not analyze whether the notice complied with the requirements of the GTLA. Although defendant Road Commission invites us to engage in that analysis, we decline that invitation and leave it to the trial court to address this issue in the first instance.^[3]

We next turn to plaintiffs' argument that the trial court granted summary disposition in favor of Tri-Us. The trial court granted summary disposition on two grounds. First, the trial court concluded that Tri-Us would be liable only if it created a new hazard, for which there was no evidence:

The Plaintiff's theory is the defendant failed to sweep the road. The duty to sweep the road is based solely upon the contract with the Commission. For the Plaintiff to have a tort claim, he must establish that the Defendant owed him a duty that was separate and distinct from the contractual obligation. Fulz v Union Commerce Associates, 470 Mich. 460; 68 N.W.2d 587 (2004). For a snow plowing contractor, that duty has been defined to be the obligation to refrain from creating a new hazard in the course of the snow removal. Id. The removal of debris from the road is factually indistinguishable from snow plowing. The Plaintiff has provided no evidence that the Defendant created a new hazard with the alleged failure to entirely remove the debris. If the debris created a hazard, it existed before the Defendant performed the sweeping service. Therefore, the Defendant's tort claim for negligence fails.

The trial court then addressed plaintiffs' attempt to argue that they were a third-party beneficiary to the contract between Tri-Us and the Road Commission. The trial court rejected the argument on two grounds. The first is that it is a claim that was not pled:

In his response brief the Plaintiff introduces a new theory for recovery as a third party beneficiary of the contract between the Commission and the Defendant. Initially, the court notes that this was not pled in the complaint and, on that basis alone, summary disposition for the Defendant should be granted. However, assuming the Plaintiff would amend the complaint to salvage his claim, he would have to allege and prove that the Defendant undertook to do something directly for his benefit or for a designated class of persons of which he is a member. MCL 600.1405; Brunsell v City of Zeeland, 467 Mich. 293; 651 N.W.2d 388 (2002).

The trial court then goes on to reject that argument:

This Plaintiff is not directly referred to in the

...